EPA Proposal Would Weaken Civil Rights Protections

Pastor Ron Smith with his mother Ann Smith, retired teacher and community leader, in Ann's office at her home near Tallassee, AL.

Jeronimo Nisa for Earthjustice

You would think at a time of increased national focus on civil rights and racial justice on the part of the Obama administration and the Black Lives Matter movement that the EPA would see an opportunity to do more on civil rights not less.

Marianne Engleman Lado

Staff Attorney, Earthjustice

January 8, 2016

Washington, D.C. —

Environmental and community groups from five states that sued the U.S. Environmental Protection Agency in July over the agency’s failure to take action on civil rights complaints are calling for the agency to significantly strengthen a rule it proposed last month to revise the way the agency handles civil rights complaints.

On Dec. 14, the federal register published the proposed rule that was intended to improve the way the EPA’s Office of Civil Rights responds to civil rights complaints it receives. The proposed revision, however, actually weakens existing protections by removing deadlines for the agency to respond and investigate complaints, according to the groups that filed suit.

Earthjustice is submitting comments to the EPA calling on the agency to maintain the deadlines and strengthen the rule in other ways.

Under the current rule, the EPA has five days to acknowledge receipt of a civil rights compliant, 20 days to decide whether the complaint merits an investigation and 180 days to make a preliminary finding of discrimination. However, the EPA’s proposed update would remove statutory deadlines, no longer requiring the agency to take action within any specific period of time. The EPA, under the proposal, would no longer have to accept all valid complaints but would have discretion to decide which complaints to pursue.

The proposed rulemaking comes on the heels of an investigation by the Center for Public Integrity in August that found that the Office of Civil Rights has failed to investigate and act on claims filed under Title VI of the Civil Rights Act of 1964, which allows federal agencies to withhold funds from local and state governments that discriminate on the basis of race or national origin.

The investigation, which culminated in a seven-part news series, "Environmental Justice Denied", determined that the EPA dismissed 90 percent of claims it received alleging environmental discrimination and that it never issued a finding of environmental discrimination in its 22-year history of investigating civil rights complaints despite repeated national studies showing that communities of color face a disproportionate burden of environmental pollution.

In July, Earthjustice on behalf of groups around the country sued the EPA for allowing five separate civil rights complaints to stall for more than a decade. The complaints involve discrimination by the states in granting permits that subject already overburdened low-income communities of color to more big-polluting facilities.

"It is shocking that the EPA would on the one hand acknowledge its failures to properly handle civil rights complaints, decide a revision is necessary and then turn around and remove the only clear basis for holding itself accountable for acting on complaints in a timely fashion," said Earthjustice attorney Marianne Engelman Lado, who filed suit on behalf of the groups.

The EPA, launched a 60-day comment period on the rule, which began Dec. 14, and is holding five public hearings in January in Chicago, Ill.; Houston, Texas; Oakland, Calif.; Research Triangle Park, N.C. and Washington, D.C. to receive comments about the rule.

In discussing the proposal, Lado noted that EPA Administrator Gina McCarthy intended to make civil rights a legacy issue but this proposal doesn’t help her achieve that goal.

"You would think at a time of increased national focus on civil rights and racial justice on the part of the Obama administration and the Black Lives Matter movement that the EPA would see an opportunity to do more on civil rights not less," she said. "This proposal to remove deadlines takes us backward on civil rights."

One of those who is suing the EPA over its failure to address his civil rights complaint is Ronald Smith, of the historic nearly all-black Ashurst Bar/Smith Community, an unincorporated area located in the southernmost tip of Tallapoosa County, Alabama. In 2003, Smith’s mother joined with other community members to challenge Alabama’s practice of permitting landfills in majority African American communities. EPA accepted the community’s complaint for investigation in 2005 but has yet to complete its investigation, more than a decade later, leaving the community exposed. Since 2003, community members have contended with a large amount of truck traffic to and from the landfill on rural residential roads, putrid smells that on some days can travel up to three miles from the landfill, and vultures and other pests that are attracted to the landfill. The landfill owner has infiltrated the community continually buying up property from homeowners who decide to move. Smith’s mother is now in her 80s, but Mr. Smith and remaining members of the community vow to hold EPA, the state of Alabama, and the landfill accountable.

"The EPA should be doing all it can to hold states like Alabama accountable and protect residents of the Ashurst Bar/Smith community from the health impacts of pollution," said Smith. "They should be doing more to prevent discrimination on the basis of race, not looking for a way to avoid taking action in a timely way."

Lado said that while the EPA’s removal of statutory deadlines for responding to complaints and investigating them is deeply troubling, the EPA did do something helpful by also releasing a draft for a Case Resolution Manual, which will offer guidance to the Office of Civil Rights on the proper procedure for handling civil rights complaints.

"We had been advocating for a more professional, consistent and uniform approach to handling civil rights complaints," said Lado. "We do believe that a manual that gives the under-resourced civil rights investigators some guidance will be helpful."

About Earthjustice

Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.